Citation: 2013 TCC 170
Date: 20130527
Docket: 2012-1261(GST)G
BETWEEN:
CANADIAN IMPERIAL BANK OF COMMERCE,
appellant,
and
HER MAJESTY THE QUEEN,
respondent.
REASONS FOR ORDER
Jorré J.
Introduction
[1]
There are two motions
before me in this matter.
[2]
First, the appellant
seeks to file an amended amended notice of appeal. I shall refer to this as the
second amended notice of appeal.
[3]
Secondly the respondent
seeks what is referred to as a full list of documents pursuant to Rule 82 of
the Tax Court of Canada Rules (General Procedure).
[4]
This is a GST appeal
that relates to the reporting periods from March 25, 2005 to February 26,
2007.
[5]
The amounts in issue
were not claimed in the original GST returns. The appellant filed a rebate
application on March 26, 2007 and that claim was assessed pursuant to
section 297 of the Excise Tax Act (ETA).
[6]
The appellant
subsequently filed a notice of objection and appealed directly to the Court
pursuant to paragraph 306(b) of the ETA prior to the Minister
acting on the objection.
[7]
The matter is at an
early stage. Discoveries have not been held and, while Rule 81 lists have been
exchanged, as of the date of the hearing, the parties had not yet exchanged
documents.
[8]
There is a substantial
amount at stake, approximately, $45 million in this appeal and, approximately,
another $80 million in respect of other periods which are at the objection
stage.
Nature of the Dispute
[9]
In the periods in issue
the appellant and Aeroplan were involved in what is referred to in the
pleadings as the Aeroplan program. The appellant made certain payments to
Aeroplan in relation to the program and paid approximately $45 million in
respect of the goods and services tax on those payments.
[10]
Subsequently, the
appellant made a rebate claim in respect of that $45 million amount which
rebate claim was denied by the Minister. The appellant says that no GST should
be levied on the payments in question and submits various reasons in support.
[11]
The claim is described
more fully in paragraphs 2 to 22 of the first amended notice of appeal. The key
portions read as follows:
2. The Minister denied CIBC’s rebate claim in the Assessment
under appeal . . . for the period March 25, 2005 to February
26, 2007 . . . in respect of payments of Goods and Services
Tax . . . on amounts paid . . . to
Aeroplan Limited Partnership . . . .
. . .
5. CIBC is a “financial institution” under the Act and is
resident in Canada.
Aeroplan Program
6. Aeroplan and CIBC shared
responsibility for the “Aeroplan Program”, pursuant to which a person (a
“Cardholder”) holding both an Aeroplan Card and a co‑branded CIBC VISA
Card such as the CIBC Aerogold VISA Card (a “Co‑Branded VISA Card”) would
earn “Aeroplan Miles” on the use of the Co‑Branded VISA Card and would be
entitled to redeem the Aeroplan Miles as consideration for the cost of travel.
7. Aeroplan was required to grant to any Cardholder membership
in the Aeroplan Program and was required to credit Aeroplan Miles to such a
Cardholder.
8. Aeroplan arranged for Aeroplan members and other members of
the public to apply for a Co-Branded VISA Card.
9. Aeroplan and CIBC established and paid for equally an annual
pool of Aeroplan Miles to be used for Cardholder retention programs.
10. CIBC was required to consult with Aeroplan prior to implementation
or deletion of optional features on the Co-Branded VISA Cards.
11. Aeroplan and CIBC were required to mutually develop the
design of the Co‑Branded VISA Cards and mutually consent to changes
thereto.
12. All advertising and promotion of the Co-Branded VISA Cards or
Aeroplan benefits available through the Co-Branded VISA Cards were subject to
the prior approval of both CIBC and Aeroplan.
13. Aeroplan and CIBC agreed to share equally the cost of all
future changes required by Aeroplan to the CIBC system, and future changes
required for reasons of market competitiveness would be cost shared as mutually
agreed.
14. Substantially all of the revenue to be derived by Aeroplan
and CIBC in relation to the Aeroplan Program was dependent on the success of
the Aeroplan Program, as measured by the use of the Co-Branded VISA Cards by
Cardholders.
IV. ISSUES TO BE DECIDED
15. The issue in this Appeal is whether the Aeroplan Payments
were consideration for a taxable supply made by Aeroplan to CIBC or, instead,
were:
(A) consideration for Aeroplan’s exempt supply of a financial
service made to CIBC;
(B) in the alternative, Aeroplan’s share of the revenues from a
joint venture, the Aeroplan Program; or
(C) in the further alternative, consideration for Aeroplan’s
issuance or sale of a “gift certificate”.
V. STATUTORY PROVISIONS RELIED ON
16. CIBC relies on sections 123, 165, 181.2, 261, and 296 of the
Act, Part VII of Schedule V to the Act, and Part IX of Schedule VI to the Act.
VI. REASONS THE APPELLANT INTENDS
TO ADVANCE
Exempt Supply of a Financial Service
17. CIBC says that any supply made by Aeroplan to CIBC
constituted an exempt supply of a “financial service” pursuant to paragraphs
(i) or (l) of the definition of “financial service” or by a combination thereof
and was not excluded from the definition by paragraphs (n) to (t) thereof, so
GST was not exigible thereon.
Joint Venture
18. In the alternative, CIBC says that the Aeroplan Program was a
joint venture between Aeroplan and CIBC; as joint venturers, Aeroplan and CIBC
shared in the responsibilities and the revenues of the Aeroplan Program,
pursuant to which supplies were made to the Cardholders but not to CIBC.
19. The Aeroplan Payments constituted Aeroplan’s share of the
revenue earned by Aeroplan and CIBC as joint venturers under the Aeroplan
Program; the Aeroplan Payments did not constitute consideration for a supply
made to CIBC, so GST was not exigible thereon.
Gift Certificate
20. In the further alternative, the only supply made by Aeroplan
to CIBC under the Aeroplan Program was the issuance or sale of Aeroplan Miles,
which constitute a “gift certificate” under the Act.
21. Pursuant to section 181.2 of the Act, the issuance or sale of
a gift certificate for consideration is deemed not to be a supply, so GST was
not exigible thereon.
VII. RELIEF SOUGHT
22. CIBC requests that this Appeal be allowed with costs and that
the Minister vacate the Assessment and allow CIBC’s rebate claim in the
amount of $44,784,563, plus interest.
[Underlining in
original.]
The Motion to Amend
[12]
Rule 54 says:
54 A
pleading may be amended by the party filing it, at any time before the close of
pleadings, and thereafter either on filing the consent of all other parties, or
with leave of the Court, and the Court in granting leave may impose such terms
as are just.
[13]
The proposed changes in
the second amended notice of appeal relate to three paragraphs. The first of
these paragraphs is in the issues section of the appeal; the other two are in
the reasons section.
[14]
The first of these is
paragraph 15. It currently reads:
15. The issue in this Appeal is whether the Aeroplan Payments
were consideration for a taxable supply made by Aeroplan to CIBC or, instead,
were:
(A) consideration for Aeroplan’s exempt supply of a financial
service made to CIBC;
(B) in the alternative, Aeroplan’s share of the revenues from a
joint venture, the Aeroplan Program; or
(C) in the further alternative, consideration for Aeroplan’s
issuance or sale of a “gift certificate”.
[15]
Under the proposed
amendment in subparagraph 15(B), “a joint venture,” would be deleted.
[16]
There would also be
changes to the heading just above paragraph 18 and to paragraphs 18 and 19.
Currently, this reads:
Joint Venture
18. In the alternative, CIBC says that the Aeroplan Program was a
joint venture between Aeroplan and CIBC; as joint venturers, Aeroplan and CIBC
shared in the responsibilities and the revenues of the Aeroplan Program,
pursuant to which supplies were made to the Cardholders but not to CIBC.
19. The Aeroplan Payments constituted Aeroplan’s share of the
revenue earned by Aeroplan and CIBC as joint venturers under the Aeroplan
Program; the Aeroplan Payments did not constitute consideration for a supply
made to CIBC, so GST was not exigible thereon.
[17]
In the proposed second
amended notice of appeal, this would read as follows:
Joint Supply
18. In the alternative, CIBC says
that Aeroplan and CIBC shared in the responsibilities and the revenues of the
Aeroplan Program, pursuant to which they made a single supply to the
Cardholders.
19. The Aeroplan Payments constituted Aeroplan’s share of the
revenue earned by Aeroplan and CIBC under the Aeroplan Program; the Aeroplan
Payments did not constitute consideration for a supply made by Aeroplan to
CIBC, so GST was not exigible thereon.
Respondent’s Opposition
[18]
The respondent opposes
the amendments on two grounds.
First Reason
[19]
Briefly, the
respondent’s first reason for opposing the amendments is:
(a) that no legal
relationship is pleaded that would give rise to a sharing of revenues and to the
absence of a supply to the appellant, leaving the respondent to guess as to the
nature of the legal relationship,
(b) that no underlying
facts supporting the sharing of revenues and the absence of a supply to the
appellant are pleaded, and, further,
(c) that, as a result, with
respect to the proposed second issue, subparagraph 15(B), and the two related
paragraphs to be amended, paragraphs 18 and 19, no cause of action is set out.
[20]
The respondent says
that this is contrary to the objectives of pleadings, which include: clarifying
the controversy, giving the other party notice of the case it has to meet and
assisting the Court.
[21]
The respondent also
refers to Odgers’ Principles of Pleading and Practice and the passage which
says: “If vague and general statements were allowed, nothing would be defined;
the issue would be ‘enlarged’, as it is called; and neither party would know,
when the case came on for trial, what was the real point to be discussed and decided.”
[22]
I agree.
[23]
I also accept that I
can consider whether an amendment conforms to the rules of pleading.
[24]
When I examine the
factual portion of the proposed second amended notice of appeal and the reasons
relied on, I have some difficulty in seeing how those paragraphs, assuming them
to be proven, would give rise to the conclusion that there was a relationship
resulting in the sharing of revenues.
[25]
Indeed if I examine the
facts in the current notice of appeal, the first amended notice of appeal, I
have some difficulty understanding how they support the current alternative
allegation that there is a joint venture sharing revenues.
[26]
Accordingly, there is
merit in the respondent’s point.
[27]
However, I am not
convinced that refusing the amendments is necessarily the appropriate remedy.
[28]
As a result of the
affidavits there is a fair amount of supporting material before me. The
material includes what appears to be the key agreement between the appellant
and Air Canada, a document entitled “Credit Card Agreement” dated April 16, 2003.
[29]
I note that at clause
20 of the agreement it states that the parties do not intend to create a
partnership, joint venture or similar relationship.
[30]
While such an
arrangement is not apparent to me on the face of the agreement, especially when
I look at appendix D, it may be that the appellant takes the position that the
agreement creates a contractual relationship whereby the parties share
revenues.
[31]
It may also be that
there are other relevant facts or contractual documents.
[32]
Leaving aside the second
objection raised by the respondent for the moment, refusing the amendments is
not the most effective way to deal with the deficiency.
[33]
If the amendments are
refused, the refusal may very well trigger another application to amend that
will provide more facts and reasons in accordance with the requirements for
pleading contained in Rule 48 and in paragraphs (c) and (f) of
Form 21(1)(a) of the Rules.
[34]
Since the Court may
impose such terms as are just pursuant to Rule 54, the practical solution that
would keep things moving would be to order that the appellant provide
particulars of the facts and reasons supporting the proposed amendments. This
will help make the discovery process more effective and efficient.
[35]
I note that there is at
least some authority for the proposition that particulars in this Court are
limited to facts under Rule 52. Assuming that to be the state of the law, I do
not see any such limitation in terms of appropriate conditions that may be
imposed under Rule 54.
[36]
However, before
following such a course of action, I must consider the second objection raised
by the respondent.
Second Reason
[37]
The respondent says
that the amendments should be rejected because the appellant is prohibited from
raising the issue by reason of subsection 306.1(1) of the ETA.
[38]
The relevant portions
of subsection 306.1(1) read as follows:
306.1(1)
[Where a specified person] has filed a notice of objection . . .,
the person may appeal to the Tax Court . . ., or a reassessment
made, only with respect to
(a)
an issue in respect of which the person has complied with subsection 301(1.2)
or (1.21) in the notice, or
(b)
. . .
and . . . the person may so appeal only
with respect to the relief sought in respect of the issue as specified by the
person in the notice.
[39]
In turn the relevant
portions of subsection 301(1.2) read as follows:
301(1.2) Where a person objects to an assessment in
respect of which the person is a specified person, the notice of objection
shall
(a)
reasonably describe each issue to be decided;
(b)
specify in respect of each issue the relief sought, expressed as the change in
any amount that is relevant for the purposes of the assessment; and
(c)
provide the facts and reasons relied on by the person in respect of each issue.
[40]
There is no dispute
that the appellant is a specified person.
[41]
More specifically, the
respondent says:
(a) that the proposed
amendments raise a new issue, which the respondent describes as the “no supply”
issue,
(b) that the appellant did
not reasonably describe the new issue in its notice of objection as required,
(c) that the appellant did
not provide the facts and reasons it relied on in the notice of objection as
required by subsection 301(1.2) of the ETA.
and that, as a result, it is precluded from raising
this issue and making the proposed amendments.
[42]
The merits of the
respondent’s submission turn on the following questions:
(a) What is the meaning of
the word “issue” in the context of sections 301 and 306.1?
(b) Has the appellant
raised a new issue within the meaning of those sections?
(c) If the appellant is
not raising a new issue, did the appellant comply with paragraph 301(1.2)(c)?
(d) Finally, if it turns
out that new reasons are raised rather than new issues, and if the appellant
has complied with paragraph 301(1.2)(c), at the appeal stage can the
appellant provide further facts and reasons in support of its position in
relation to the issues?
[43]
The word “issue” has a
variety of meanings many of which do not fit in this context.
[44]
The online edition of
the Oxford English Dictionary provides numerous definitions of the word “issue”.
[45]
The ones that are most
applicable are the eleventh to thirteenth definitions:
11.
a.
Law. The point in
question, at the conclusion of the pleadings between contending parties in an
action, when one side affirms and the other denies.
issue of fact, an issue raised by
denying something averred as a fact. issue of law, an issue
raised by a demurrer or analogous proceedings, conceding the fact alleged, but
denying the application of the law as claimed. general issue . . . .
special issue, an issue raised by denying part of the
allegations.
b. transf. A point on the decision of which something depends
or is made to rest; a point or matter in contention between two parties; the
point at which a matter becomes ripe for decision. Esp. in to put to
(†on, upon, an, the) issue and similar phrases: to bring to a point
admitting of decision.
c.
A matter or point which remains to be decided; a
matter the decision of which involves important consequences.
d.
A choice between alternatives, a dilemma.
12.
at issue.
a. In Law: . . . . Hence gen. of
persons or parties: In controversy; taking opposite sides of a case or contrary
views of a matter; at variance.
b. Of a matter or question: In dispute; under discussion; in question.
Also, rarely, in issue.
13.
to join issue. . . .
a. Law. Of the parties: To submit an issue (sense 11) jointly
for decision; also, of one party, To accept the issue tendered by the opposite
party.
b. transf. To accept or adopt a disputed point as the basis of
argument in a controversy; to proceed to argument with a person on
a particular point, offered or selected.
c. To take up the opposite side of a case, or a contrary view on
a question.
d. . . . .
[46]
The word “issue” also
has a certain elastic quality.
[47]
At one level, the
“issue” in an income tax appeal is whether the Minister has correctly assessed
a particular amount of tax, interest and, if applicable, penalties. Similarly, in
one sense, the issue in a GST appeal of a registrant is whether the Minister
has assessed the correct amount of net tax, interest and, if applicable,
penalties.
[48]
With references to “each
issue” in sections 301 and 306.1, it is clear on the face of the statute that
issue has to be understood as being at a more detailed level than simply:
Overall, how much tax is owing?
[49]
At the other extreme,
the word “issue” may refer to every disputed point of fact, procedure and law.
[50]
Clearly, “issue” cannot
be understood at such a detailed level.
It would unduly limit the scope of “facts” and “reasons” and does not fit the
scheme of the provisions. It would also be extremely difficult to comply with.
[51]
In the context of
sections 301 and 306.1, the word “issue” has to be understood as referring to
some intermediate level of detail which recognizes that not every disputed fact
or reason is an issue.
[52]
While “issue” may not
be susceptible of the precise definition in this context, guidance is available
from the scheme of subsection 301(1.2) insofar as it requires that a taxpayer:
(a)
reasonably describe each issue to be decided;
(b)
specify in respect of each issue the relief sought, expressed as the change in
any amount that is relevant for the purposes of the assessment; and
(c)
provide the facts and reasons relied on by the person in respect of each issue.
[53]
It is clear from the
section that “issues” are different from “facts” and from “reasons”.
[54]
Paragraph (b) is
interesting because it suggests that a particular “issue” will to some extent be
tied to a particular financial impact in terms of the assessment.
[55]
While it may be that
two distinct “issues” might coincidentally have the same quantitative impact,
the fact that something which is alleged to be a different “issue” has exactly
the same impact may well be an indicia that it is really the same “issue”.
[56]
Here, the second
amendment does not seek any change in the financial consequence. The relief
sought is the same as at page 12 of the statement of facts and reasons attached
to and forming part of the notice of objection dated June 22, 2011.
[57]
It is also helpful to
consider the reasons behind these provisions. They were set out in a paper by
R.M. Beith quoted by the Federal Court of Appeal in Canada v. Potash Corporation
of Saskatchewan:
4 The
Large Corporation Rules were enacted in 1995 to discourage large corporations
from engaging in a full reconstruction of their income tax returns for a
particular year, after the objection or appeal process had started, based on
developing interpretations and the outcome of court decisions in litigation
involving other taxpayers. The reasons for these subsections are well-stated by
R.M. Beith in his paper entitled “Draft Legislation on Income Tax Objections
and Appeals” as outlined in the Report of Proceedings of the Forty-Sixth Tax
Conference, 1994 Conference Report (Toronto: Canadian Tax Foundation, 1995),
34:2.
One
of the reasons for the legislation is to identify disputed issues much sooner
so that a taxation year’s ultimate tax liability can be determined in a timely
way.
Owing
to the complexity of the law and the number of issues, for many years a number
of large corporations have had some of their taxation years left open through
outstanding notices of objection or appeals, so that they have been able to
raise new issues based on emerging interpretations and the outcome of court
decisions challenged by other taxpayers.
Recently,
a particular problem was identified by the auditor general and the Public
Accounts Committee. A case dealing with the calculation of the “resource
allowance” which was decided against the department, resulted in claims not
only based on the particular facts decided by the court but in respect of a new
issue concerning the calculation of the “resource allowance”. These claims,
both directly and indirectly from the court decision, involved significant
amounts of tax and interests.
In
summary, it is essential that revenues be more predictable and therefore that
potential liabilities be identified and resolved within a more reasonable time.
Simply
put, Parliament wants the Minister of National Revenue (the Minister) to be
able to assess at the earliest possible date both the nature and quantum of
pending tax litigation and its potential fiscal impact.
[58]
The Federal Court of
Appeal also said in Potash Corporation:
5 The parties advance opposing theories as to
the scope of these two subsections. The appellant says the Large Corporation
Rules are a statutory bar which restricts an appeal to the Tax Court solely to
the issues and relief clearly raised in the large corporation’s notice of
objection. The amount of the relief sought can never increase above that
claimed in the notice of objection, except to allow the correction of minor
arithmetical and technical errors.
6 On
the other hand, PCS argues that these subsections are merely procedural rules
that cannot fetter a large corporation’s right to be taxed in accordance with
the substantive rules which expressly govern the calculation of its income
under, for example, subsection 2(1), section 3, paragraph 20(1)(vi) and
section 65 of the Act. PCS argues that the granting of the amendment is a
reasonable exercise of the Judge’s discretion.
[59]
In that case there were
various items of miscellaneous income, foreign exchange income and farm income
which the Minister had excluded from the computation of resource profits.
Potash Corporation challenged all those changes in its notice of objection and
its notice of appeal.
[60]
Subsequently, during
the course of the appeal as a result of the examinations for discovery, Potash
Corporation discovered additional amounts of miscellaneous income, foreign
exchange income and farm income that it believed should belong in its notice of
appeal. As a result it sought and obtained an amendment to its notice of appeal.
[61]
It is in this context
that the Federal Court of Appeal said in Potash Corporation:
21 The
Large Corporation Rules place further requirements on large corporations that
object to an assessment by the Minister. The main issue in this case is the
meaning to be given to the words “each issue” in the phrase “reasonably
describe each issue to be decided” in paragraph 165(1.11)(a). In
interpreting those words, the Judge wrote:
The
issue is the legal matter which the taxpayer contests with the CCRA. It is not
required to be described exactly, but if it was, it could be expressed in
section numbers of the Income Tax Act, or in words taken from or
paraphrased from those sections.
22 I
do not agree with this statement. While a large corporation is not required to
describe the issue “exactly”, as the Judge states, it is required to describe
the issue “reasonably”. What is reasonable will differ in each case and will
depend on what degree of specificity is required to allow the Minster to know
each issue to be decided.
23 In
reassessing PCS, the Minister set out the precise items of income which were
being disallowed as part of resource profits (see paragraph 8). In filing its
notice of objection, PCS objected to the disallowance of these same items of
income, describing them in the same fashion as the Minister. That complied with
paragraph 165(1.11)(a) because it gave sufficient certainty as to what
issues were then under objection.
24 Contrary
to the Judge’s suggestion, it would not have been reasonable to simply say that
the computation of “Resource Allowance” or “resource profits” was in issue,
without specifying the particular elements of that computation that required a
determination by the Minister or the Tax Court, as the case may be. That level
of generality would render the Large Corporation Rules meaningless, defeating
the purpose of their enactment.
[Emphasis added.]
[62]
The situation here is
quite different from that in Potash Corporation.
[63]
In Potash
Corporation, there was an amendment to include entirely new amounts to the
computation of the allowance, increasing the allowance.
[64]
Here, with or without
the amendments, we are talking about the exact same amounts of GST paid on the
same payments from the appellant to Aeroplan Limited Partnership and whether
those particular payments are subject to GST.
[65]
What is being changed
is part of the reasons and, possibly, part of the facts relied upon by the
appellant. There is no change to the “issue” in the sense used by the sections
in question.
[66]
The respondent also
cited the Federal Court of Appeal decision in Canada v. Telus
Communications (Edmonton) Inc.
In that case the Minister assessed the appellant in excess of $2 million in
additional net GST. Interest and a penalty pursuant to subsection 280(1) of the
ETA were added to the assessment as well.
[67]
The appellant taxpayer
had challenged the additional $2 million in tax for various reasons.
[68]
In its objection the
appellant did not challenge the penalty, as such, although it was accepted by
all that if there was a reduction in the amount of net tax a corresponding
reduction of penalty and interest would follow.
[69]
Later, the appellant
sought to amend its notice of appeal and challenged the entire penalty on the
basis of the due diligence defense.
[70]
The amendment was
refused by the trial judge. On appeal, the Federal Court of Appeal, with
respect to subsections 306.1(1) and 301(1.2), held that the amendment raising a
due diligence defense did raise a new issue and as a result could not be
advanced by the appellant.
[71]
In Telus, while
success, in part or in whole, in the challenge to the net tax would necessarily
bring about a reduction in the penalty to the same extent, if the appellant
failed in its challenge to the net tax but succeeded on due diligence, the
penalty would be eliminated even though the net tax remained unchanged. The due
diligence defense clearly raises a new issue.
[72]
That situation is very
different from the one here. Here, the “no supply” approach has the same
consequence as the approach in subparagraphs 15(A) and (C) of the proposed
second amended notice of appeal. Subparagraph (A), proposed subparagraph (B)
and subparagraph (C) are all reasons in support of the issue raised in the
preamble of paragraph 15, “whether the Aeroplan Payments were consideration for
a taxable supply made by Aeroplan to CIBC”.
[73]
Before concluding on
this point, I should deal with Pétromont and Company, Limited Partnership v.
Ontario (Minister of Finance),
a decision of the Ontario Superior Court of Justice.
[74]
In Pétromont,
the appellants sought a reimbursement of retail sales tax in respect of railway
tank cars they leased and that travelled through Ontario.
[75]
The appellants raised a
number of grounds. First, there was a constitutional issue. Secondly, they
argued that their use of the railcars in Ontario was transitory and did not
bring them into the charging section.
[76]
Finally, they argued
that if the use of the cars did fall into the charge then the formula for
calculating the taxable value should take account of the fact that about half
of the journeys were empty return journeys.
[77]
The Ontario Retail
Sales Tax Act
has provisions similar to the ones in issue here; they are set out in
paragraphs 55 and 56 of Pétromont:
55
Section 24(1.1) of the Act provides that where a taxpayer files a Notice of
Objection, the Notice of Objection,
...
shall clearly describe each issue raised, and fully set out the facts and
reasons relied upon in respect of each issue.
56
Once the Minister has rendered a decision, the taxpayer may choose to appeal,
whereupon section 25(2.1) of the Act provides that,
A
person is entitled to raise by way of appeal only those issues raised by the
person in a notice of objection to the assessment being appealed and in respect
of which the person has complied or was deemed to have complied with subsection
24(1.1).
These provisions are different in one respect; they do
not require the specification of the relief sought.
[78]
In Pétromont,
the Court, following Telus, held that the empty return journey issue
could not be raised because it had not been raised in the notice of objection.
[79]
The Pétromont
decision
went on to say that, if the return journeys were not a new issue but simply an
amplification of what was raised in the objection, it would not change the
outcome.
[80]
Unfortunately, if I
understand the facts and arguments correctly, I am unable to share the view of
the Ontario Superior Court in Pétromont on the new issue question
because I would have thought that the return journey argument amounted to
additional reasons, or, as the Ontario Superior Court in Pétromont put
it, an amplification of what had been raised in the objection, not a new issue.
[81]
I note that in British Columbia Transit v. The Queen, a GST case, the appellant was denied
input tax credits on the basis that it did not make taxable supplies for
consideration because certain grants it received under the contractual
arrangements were not consideration. The appellant disputed this. Later, the
appellant also took the position that certain property taxes paid on its behalf
constituted consideration. The respondent took the position that because of
subsection 306.1(1) the appellant was precluded from arguing the point.
[82]
Both parties proceeded
on the basis that the property tax argument constituted additional facts and
reasons, not an additional issue.
[83]
I am of the view that
the situation here is analogous to BC Transit in that what is raised
here are additional reasons, not a new issue.
Can the appellant provide further facts and reasons at
the appeal stage which were not raised in the notice of objection?
[84]
There is no question
that the notice of objection did provide facts and reasons in support of the
appeal. Is an appellant who is a specified person precluded at the appeal stage
from raising additional facts and reasons in support of any issue already
raised?
[85]
I agree with Justice C.
Miller of this Court who, in BC Transit, held that subsections 306.1(1)
and 301(1.2) were not a bar to an amendment in circumstances where what had
been shown was a failure with respect to providing all facts and reasons as
opposed to a failure to state the issue and the relief sought in the objection.
[86]
This result is clear
from the sections. They do not require that every reason invoked on appeal by
an appellant be spelled out in the notice of objection. This is apparent from
subsection 306.1(1) which says only that the appellant (i) must comply with
subsection 301(1.2) and is limited to (ii) the issues raised and (iii) the
relief sought; the subsection does not say the person is limited to the facts
and reasons in the notice of objection.
[87]
As a result I am
satisfied that the proposed amendments do not raise new issues contrary to
subsection 306.1(1).
[88]
The amendments shall be
allowed subject to the condition that the appellant separately provide
particulars of the facts and reasons in support of the proposed amendments.
The Motion for Full Disclosure
[89]
The respondent seeks a
full list under Rule 82 or, if it fails to obtain that, an order for production
of a somewhat more limited set of documents.
[90]
The appellant takes the
position that the issue in the motion is whether the Court should order a full
disclosure of documents at this time. It opposes the application. It says a
full list would place an undue cost and time burden on it.
[91]
In correspondence
exchanged by the parties prior to this motion, the appellant did try to propose
an intermediate course of action whereby it would produce a more limited set of
documents beyond its Rule 81 list.
[92]
In support of its
opposition to the order, the appellant says that full disclosure is being
sought before the appellant has been asked to produce the documents in its
list, that the respondent has not articulated what documents it seeks, how they
are relevant, and why they are necessary to a fair and efficient hearing of the
matter and that the respondent cannot show any difficulty in otherwise
obtaining the documents during the discovery process. The appellant argues that
the motion should be dismissed as premature and that, in any event, the
principle of proportionality does not favour full disclosure.
[93]
Chief Justice Bowman
sets out the basic principle in Mintzer v. The Queen:
14 . . . In this court making an order
for full disclosure under Rule 82 is not unusual if the party seeking the order
can demonstrate reasonable grounds for such an order. There should however be
some basis for putting the other party to the expense and trouble of assembling
a large number of documents. . . .
[94]
Among the considerations
in deciding such an application are the facts in dispute as set out in the
pleadings.
[95]
It is also possible for
a court to order that a party make documentary disclosure beyond the scope of
the party’s own Rule 81 list without ordering a full list.
[96]
One can view such an
order as either as a Rule 82 list on terms limiting its scope or as an
alternate remedy that is different from either a Rule 81 or 82 list.
[97]
It does not really
matter how one describes such an order but I shall refer to it as a Rule 82
list on terms because, while it is more restrictive in scope than a full list
under Rule 82, it does have a key feature of Rule 82, that it includes the
relevant documents as opposed to just those a party relies on.
[98]
I would also note that,
of course, the refusal of a Rule 82 order or the granting of a partial one does
not preclude the possibility of applying to the Court for further documentary
discovery; it also does not preclude seeking documents at the oral examination
for discovery.
[99]
Rule 82 does not set
mandatory requirements at the very high level suggested by the appellant before
a party can obtain a Rule 82 list.
[100]
While a Rule 82 list is
not automatic, there is no mandatory requirement that a party must always “. . .
[articulate] what documents it would like to obtain through full disclosure,
how they are relevant, and why they are necessary for a fair and efficient
hearing of the matter”.
[101]
Such a requirement presumes that a
party already knows what documents the other party has. While there may be
occasions where that is true, it will often not be the case. Indeed, one would
not normally expect a party to be aware of all the documents held by the
opposite party.
[102]
Similarly, while oral examination
for discovery is often a useful means for obtaining documents, there is no
requirement that a party necessarily use such efforts first, especially since a
party may not be aware of very relevant documents that, given the
circumstances, the party might have no reason to suspect their existence. A
party is not required to guess what the other side has.
[103]
The appellant places great
reliance on Long v. The Queen.
In Long, Justice Campbell of this Court found that Mr. Long’s
motion was premature in the particular circumstances of that case. Mr. Long,
who had been subject to a criminal investigation which led to charges that were
later stayed, was subsequently assessed for unreported income. Mr. Long
alleged various Charter violations and sought a very lengthy list of documents
including documents in the hands of third parties, one of which was the RCMP.
[104]
While the Federal Court of Appeal,
in the decision written by Justice Evans, upheld the decision of the trial
judge, it did not establish a set of requirements to be met in all
circumstances.
[105]
The decision on a Rule 82
application is necessarily very much based on a consideration of the particular
circumstances of the case and the objectives of the rules of procedure. These
objectives include enabling each party to discover not only the other party’s
case but relevant evidence the other party may have.
[106]
Those objectives also include not
only considerations of efficiency but also of effectiveness. It is also
relevant to consider practicality and the need to get on with litigation.
Closely related are considerations of proportionality, which I shall come to in
a moment.
[107]
There is clearly a basis here for
going beyond a Rule 81 list in this case. On the face of the pleadings there
are significant factual disputes. There is a significant amount of money in
dispute. When the rebate claim was being reviewed the respondent says it was
only able to obtain invoices for a small part of the amount of approximately
$45 million claimed. The second amendment to the notice of appeal raises
new reasons and possibly new facts.
[108]
There is also no question that a
fuller exchange of documents before discovery may help make that discovery more
effective and reduce the chance that a second round of discoveries may be
needed.
[109]
Both parties have significant
resources, there is a good deal of tax at stake and there appears to be
significant and serious issues at stake. In the sense proportionality is often
discussed, it is probably not an issue here.
[110]
However, there is a long tradition
in tax of trying to keep down, if possible, the amount of time and effort spent
on pretrial stages of the proceeding. It is reflected in the choice of Rule 81
as the default rule. Arguably, this tradition is also a kind of consideration
of proportionality although, to my knowledge, discussions of proportionality
started much more recently than this tradition.
[111]
In very large organizations
reasonable efforts to ensure all relevant documents have been found can take
significant efforts given not only that sometimes documents are misfiled or
sent to the wrong person but, occasionally, a person in an unexpected part of
an organization may have been drawn in by reason of particular knowledge or
expertise.
[112]
It is also worth bearing in mind
that with the advent of e-mail often far more copies of documents are now sent
out within organizations and that relevance for the purpose of discovery is of
wider scope than at trial.
[113]
Considering these factors,
considering as well that, as I said earlier, there is a basis for going beyond
Rule 81, and considering that parties may seek further documents at the examination
for discovery or by later motions, the appropriate approach in these
circumstances is to make an order on terms.
[114]
There is merit in the approach
that the appellant was trying to work out restricting the scope of the search
for documents in terms of location to those parts of the appellant most likely
to have relevant documents. I think there is also merit in trying to treat
quantum issues slightly differently.
[115]
While I will issue an order, it
will be limited in scope as to the places to be searched by the appellant.
[116]
In his affidavit, Stephen Bobkin
sets out the structure of the appellant and his efforts to determine the most
likely places to locate documents relevant to the appeal. In paragraph 19 of
the affidavit he states that the most likely place for documents relevant to
the appeal are the Card Services Division and the Legal, Tax and Finance
Departments. Elsewhere in the affidavit there is reference to the Card Products
Division; I do not know if this is different from the Card Services Division or
simply a different name for the same thing.
[117]
I note that the April 16, 2003
agreement between the appellant and Air Canada is signed on behalf of the
appellant by Richard Venn, Senior Executive Vice-President, and E.C. Johannson,
Vice-President, Marketing and Business Development. In the 2012 annual report
of the appellant, Mr. Venn is listed as Senior Executive Vice-President,
Advisor to the CEO Office.
While Mr. Venn may have held a different Senior Executive Vice-President
position, it appears to indicate that the agreement was approved at more senior
levels than the four departments or divisions referred to in paragraph 19 of
Mr. Bobkin’s affidavit.
[118]
The Rule 82 order will be limited
in scope to documents in the Legal, Tax and Finance Departments, the Card
Services Division and/or Card Products Division and the offices of the persons
to whom the named departments or divisions report to as well as, if they are
not already covered, the offices of the positions held by Mr. Venn and Mr. Johannson
on April 16, 2003 and the office of the CEO.
Quantum
Dispute
[119]
The terms just stated shall also
apply to documents relating to the quantum dispute.
[120]
However, additional preconditions
would be appropriate.
[121]
One would expect both Aeroplan and
the appellant to have good records. It should be straightforward to produce
invoices or other documents that resulted in the payments and the GST in issue
and any adjustments thereto. It should also be straightforward to produce
documents or records showing the corresponding payments from the appellant to
Aeroplan. Perhaps they are in the documents already in the appellant’s list.
[122]
Indeed, I find it surprising that
there would have been difficulties producing documentation at the stage where
the rebate claim was being reviewed.
[123]
However, one would hope that the
documentation was readily available and that issues regarding quantum related
documents could be easily resolved between the parties.
[124]
Accordingly, before there is
production of documents in accordance with the order, in the hope of making
that portion of the order dealing with quantum related documents unnecessary,
the order shall contain directions ordering the parties to first make a further
attempt at an informal resolution of production of the quantum related documents.
Conclusion
[125]
Rule 82 provides for an order made
to both parties. In the case of the respondent the scope will be restricted to
documents in the file of the review of the rebate application and the appeals
file dealing with the notice of objection.
[126]
Success on these motions is mixed
and I will leave costs to the trial judge.
[127]
If the parties can reach an
agreement on a proposed timetable for the next steps, they may submit it
through the registry. If they are not able to do so, arrangements will be made
for a hearing by telephone conference to set a schedule.
Signed at Montréal, Québec, this 27th day of May 2013.
“Gaston Jorré”
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